Opinion
No. HHB CV 04-0526969-S
February 23, 2007
MEMORANDUM OF DECISION ON RENEWED MOTION FOR SUMMARY JUDGMENT (#110)
After hearing oral argument at the short calendar on January 16, 2007, the court has considered the defendant Glenn M. Michaud's renewed motion for summary judgment. This court previously denied the defendant's original motion for summary judgment in its memorandum of decision dated May 19, 2006 (#108).
For ease of reference, Michaud will be referred to as the defendant.
In this personal injury action, the plaintiff, Janice L. Wentland, alleges that she was injured on November 27, 2003 when a truck operated by co-defendant Steven J. Charette struck the rear of the plaintiff's vehicle. The plaintiff alleges that, at the time of the motor vehicle accident, the co-defendant was the defendant's employee and was operating a vehicle owned by the defendant. She also alleges that, pursuant to principles of agency law and General Statutes § 52-183, the defendant is responsible for damages caused by the co-defendant. See complaint, third and fourth counts.
For ease of reference, Charette will be referred to as the co-defendant.
In the renewed motion, the defendant re-argues that he is entitled to judgment as a matter of law since the co-defendant took the defendant's vehicle without the express or implied permission of the defendant and was not acting as the defendant's agent, servant, or employee at the time of the accident. In addition to the presentation made in connection with his original motion, the defendant, with his renewed motion, adds an affidavit from the co-defendant, in which he states that, on the date in question, he drove the vehicle, without the defendant's permission, for the co-defendant's personal use. The court set forth the standard of review in its previous memorandum of decision.
General Statutes § 52-183 states that, "[i]n any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption."
"Section 52-183 . . . provides that the defendant, that is, the owner of the vehicle, bears the burden of rebutting the presumption. With respect to the latter provision, [t]his court has repeatedly held that our statute goes further than merely establishing a presumption, in that it expressly places upon the defendant the burden of introducing evidence to rebut the presumption created by the statute. Moreover, that presumption is not ousted simply by the introduction of any evidence to the contrary." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 837, 836 A.2d 394 (2003).
"The presumption ceases to be operative when the trier finds proven facts which fairly put in issue the question, and the burden of proving that the car . . . was operated by an agent of the owner . . . then rests upon the plaintiff; if no evidence relevant to the issue is produced, or, if countervailing evidence is produced but the trier does not believe it, the presumption applies, and the plaintiff is entitled to have the issue found in his favor." (Internal quotation marks omitted.) Engram v. Kraft, 83 Conn.App. 782, 786-87, 851 A.2d 363 (2004) (reversing trial court's granting of summary judgment, where, to rebut the statutory presumption of agency, the defendant produced his statement to his insurance company, his affidavit, his deposition testimony, the police accident report and an incident report that he filed with the police). The court "determine[d] that the cumulative force of the evidence resulted in a mere assertion that [the defendant/owner] never gave consent to [his former friend] to use his vehicle. The fact that the plaintiff did not produce any evidence to prove an agency relationship is of no consequence." Id., 788. "[I]t is only after the trier of fact has found that the defendant's evidence is credible that the presumption ceases to operate and the plaintiff is burdened with producing evidence to establish the agency relationship." Id., 789.
As noted above, the plaintiff has alleged that, at the time of the alleged incident, the defendant and the co-defendant had an employer-employee relationship. The co-defendant's affidavit does not contradict this assertion; rather, he states that, on the day in question, he was not scheduled to work for the defendant.
Thus, the record here contrasts, for example, with that in Fletcher v. Stoleson, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. X05CV 00017 7740 (March 11, 2002, Rogers, J.) ( 31 Conn. L. Rptr. 518), where the defendant/owner's son dropped off a vehicle for repairs at a place of business and the defendant/driver, an employee thereof, after closing hours, and without permission, drove the vehicle to a friend's house and then to a bar, after which an accident occurred. Citing Bogart v. Tucker, 164 Conn. 277, 281-83, 320 A.2d 803 (1973), the court concluded that no rational jury could disbelieve the evidence that there was no agency relationship between the owner and the driver at the time of the accident. See also Lewis v. Rodgers, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 04 0485317 (March 11, 2005, Lopez, J.) (deposition testimony of driver that she took owner's car without permission could be reasonably questioned due to relationship between owner and driver).
The defendant's presentation still amounts to a series of assertions which must be presented to the trier of fact for assessment of their credibility. Under these circumstances, the defendant has not met his burden of proof on the renewed motion.
CONCLUSION
Accordingly, the renewed motion for summary judgment is denied.
It is so ordered.